Bills would limit local governments' ability to pursue environmental claims

The Texas attorney general would be able to settle environmental lawsuits filed by cities and counties without input or approval from local officials under a bill backed by business interests that is scheduled for a hearing in Austin on Tuesday.

A second bill would bar cities and counties from hiring outside lawyers if they are to be paid from winnings to help fight costly environmental cases aimed at extracting penalties from polluters.

Together the bills, to be heard before the House Environmental Regulations Committee, effectively would limit local governments' ability to pursue environmental claims against deep-pocketed companies accused of causing significant environmental damage requiring expensive cleanups, according to city and county attorneys across the state. The bills are being carried by state Rep. Cindy Burkett, R-Garland.

“It surprises me a little bit because there is no history of us settling cases in opposition to the attorney general or against the wishes of the attorney general,” said Rock Owens, who heads the environmental division in the Harris County Attorney's office, which historically has filed the most civil environmental lawsuits in the state.

Owens said the legislation would diminish an authority local governments have had for decades to punish environmental offenders, and also make for an uneven playing field because governments cannot afford to pay private attorneys on an hourly basis like the companies they sue.

While Harris County has been filing environmental cases for a long time, it only recently began recruiting outside counsel. Six cases have been assigned to private firms.

The powerful Texas Association of Business supports the bills, saying local government lawsuits have the potential to harm economic development statewide if left unchecked.

“These lawsuits do nothing but demand dollars from companies,” said Stephen Minick, vice president of governmental affairs for the TAB. “To have the county come in and attract money from these companies who are doing everything the state and federal government have asked them to do just seems to us to not be in the public interest.”

Minick said that while the association does not oppose municipal and county attorneys being able to file such civil cases, it believes that lawsuits seeking “absurd demands” for penalties “that the state would never pursue” actually harm a company's ability to help pay for cleanup and may deter other companies from buying and redeveloping contaminated land.

Local officials disagree.

“This legislation would, I think on its face, hinder our ability to protect the environment and protect property,” said Travis County Attorney David Escamilla.

Harris County Judge Ed Emmett said the county has not taken an official position on hiring outside lawyers on a contingency fee basis, but that all counties “ought to be able to make those decisions on their own.” The Texas Municipal League and the Conference of Urban Counties, lobbying associations for the state's cities and large counties, oppose the legislation.

Burkett did not respond to repeated interview requests, but the Dallas-area lawmaker serves on the board of directors of the Texas Conservative Coalition Research Institute, a conservative think tank that published a white paper last month that specifically cites lawsuits filed recently by Harris County as the reason the legislation is needed.

The white paper said lawsuits filed by the county in the last 18 months have “the potential to undermine” environmental cleanup programs created by the Legislature and administered by the Texas Commission on Environmental Quality, “as well as to impact economic development.”

Owens said the county attorney's office believes that defendants in some high-profile suits are behind it.

A spokesman for Waste Management Inc., a defendant in one of the county's two still-pending lawsuits being fought by outside contingency firms, declined to say whether the company was involved in crafting the legislation, but said it “is familiar with the legislative content of the two bills filed,” and noted support from the business association.

The county is seeking nearly $2 billion in its suit against the company, or a maximum penalty of $25,000 a day dating back to the 1965 opening of a site near the Interstate 10 crossing where toxic pollutants were dumped and leached into the San Jacinto River for 45 years before the federal government stepped in.